CAS Decision sanctioning a ban by FIFA of a football player violates public policy
With its decision of 27 March 2012, the Swiss Federal Supreme Court held unlawful a disciplinary sanction by which FIFA threatened the football player Matuzalem with a lifetime ban in case he failed to pay a damage claim of his former club and employer.
By an earlier decision of the CAS, Francelino da Silva Matuzalem, together with the football club Real Saragossa SAD, were ordered to pay an amount of over EUR 11 million plus interest as damage after Matuzalem had left his former football club Shakhtar Donetsk to join Real Saragossa without a reason and without giving notice. As both Matuzalem and Real Saragossa did not pay the damage, FIFA set a final deadline for payment and, failing payme [...]
Ciments Français: Russian Putrabali No More
When the Arbitrazh Court of Kemerovo Region in Siberia granted leave to recognize an annulled ICC award in 2011 for the first time, international and domestic commentators rushed to acclaim the new arbitration-friendly attitude of the Russian courts, thus placing Russia ‘into line with a select number of jurisdictions’ (e.g. France and the Netherlands). Some compared the ruling in Ciments Français with the French Hilmarton and Putrabali, and the Dutch Yukos decisions, where the Cour de Cassation and the Amsterdam Court of Appeal, respectively, granted applications to enforce arbitral awards, even though the latter were set aside at the seat of arbitration.
Given the wide international r [...]
The Unavoidability of Uncertainty: One Lesson from the Recent U.S. Court Ruling in Argentina v. BG Group
It has become fashionable in recent years, each time an ICSID annulment decision is released that takes issue with the procedures or reasoning of an ICSID tribunal, for commentators to bemoan the lack of certainty, predictability and finality that this reflects in the ICSID system for adjudicating investment treaty disputes between investors and host States. Some commentators urge a return to greater use of ad hoc UNCITRAL arbitration, or arbitration before institutions other than ICSID, to avoid the perceived vagaries of the ICSID annulment process. Yet commentators often forget that these alternatives carry their own risks of uncertainty, inherent in the national court review process tha [...]
Growing number of countries allowing exclusion agreements with respect to annulment warrants greater scrutiny of arbitration clauses
After the 2011 Decree which reformed French arbitration law, the number of countries having arbitration acts expressly providing for the possibility of waiving setting aside proceedings at the seat has increased. In view of the fact that arbitration rules of some institutions provide for a waiver of “any form of recourse” against awards rendered under such rules, the topic of waiver of setting aside proceedings is becoming of increasing importance for practitioners.
Article 1522 of the French Code of Civil Procedure, which applies to international arbitrations, provides that “by way of a specific agreement the parties may, at any time, expressly waive their right to bring an action to [...]
Iura Novit Curia in Investment Treaty Arbitration: May? Must?
Iura novit curia (usually translated as “the court knows the law”) refers to the power and/or obligation of a court to conduct its own legal analysis outside the parties’ pleadings. While there are very few decisions on iura novit curia in the investment treaty arbitration context, a small number of investment treaty arbitral tribunals and ad hoc annulment committees have found that they have similar powers. More recently, at least two ICSID annulment committees have gone further, suggesting that iura novit curia is not only a power tribunals may exercise, but one tribunals must exercise. This short note does not address the appropriateness of iura novit curia in investment treaty arbi [...]
The New ICC Rules: Continuing Evolution of Case Management Powers to Control Costs and Delays in International Arbitration
- By Paul Friedland, White & Case LLP,
for White & Case
The escalation of costs and delays in international arbitration and the consequent dissatisfaction of the system’s users have become prime subjects for users of and commentators on international arbitration.1 An informal study by the Corporate Counsel International Arbitration Group (CCIAG) in 2010 found that every single corporate counsel who was surveyed thought that arbitration ‘takes too long’ and ‘costs too much’.2
It has also been correctly stated that “[w]hether or not concerns about international arbitral efficiency are exaggerated, the international arbitration community must face this discontent and, more importantly, take steps to maintain its legitimacy with its use [...]
